Le Brun (An Incapable Person Suing BY His Next Friend Elaine Le Brun) v Joseph - [2006] WADC 200

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LE BRUN (AN INCAPABLE PERSON SUING BY HIS NEXT FRIEND ELAINE LE BRUN) -v- JOSEPH & ORS [2006] WADC 200

CORAM: MCCANN DCJ

HEARD: 7-10 MARCH 2006, 13-15 MARCH 2006, 20-23 MARCH 2006, 27-31 MARCH 2006, 3-7 APRIL 2006, 10-12 APRIL 2006

DELIVERED : 14 DECEMBER 2006

FILE NO/S: CIV 2643 of 2003

BETWEEN: GARY JAMES LE BRUN (AN INCAPABLE PERSON SUING BY HIS NEXT FRIEND ELAINE LE BRUN)
Plaintiff
AND
NEVILLE PETER JOSEPH
First Defendant
JOANNE MARIE BESTED
Second Defendant
RUTH MARION KEARON
Third Defendant
MINISTER FOR HEALTH
Fourth Defendant

Catchwords:

Torts - Personal injuries - Professional negligence - Scope of duty of care of general practitioner - Of resident medical officer - Of public hospital
Torts - Causation - Omission to perform duty of care - Whether relevant to loss
Torts - Damages - Provisional assessment

Legislation:

Evidence Act 1906, s 79C
Hospitals & Health Services Act 1927, s 7

Result:

Action dismissed

Representation:

Counsel:

Plaintiff:     Mr R I Viner QC and Mr J Potter
First Defendant             :     Mr G H Murphy SC
Second Defendant         :     Mr G H Murphy SC
Third Defendant           :     Mr G R Hancy
Fourth Defendant          :     Mr G R Hancy

Solicitors:

Plaintiff:     Friedman Lurie Singh
First Defendant             :     Jarman McKenna
Second Defendant         :     Jarman McKenna
Third Defendant           :     Jackson McDonald
Fourth Defendant          :     Jackson McDonald

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Chapman v Katheappa [2002] WADC 47
Chapman v Katheappa [2003] WASCA 50
Dorsett (dec) v Janeska [2005] WASCA 215
F v R (1983) 33 SASR 189
Hewett v Medical Board of Western Australia [2004] WASCA 170
Hotson v East Berkshire Area Health Authority [1987] AC 750
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v SGIC (1995) 182 CLR 1
Naxakis v Western General Hospital (1999) 197 CLR 269
Nolan v Hamersley Iron Pty Ltd [2000] WASCA 304
Ramsay v Watson (1961) 108 CLR 642
Rogers v Whitaker (1992) 175 CLR 479
Smith v Hanrahan [2006] WADC 20
Strempel v Wood [2005] WASCA 163
The Board of Management of Royal Perth Hospital & Anor v Frost, SCt of WA; unreported; Library No.970069; 20 February 1997
Tran v Claydon [2003] WASCA 318
Western Australia v Watson [1990] WAR 248
Willcox v Sing [1985] 2 Qd R 66
Willett v Futcher (2005) 221 ALR 16
Wilsher v Essex Area Health Authority [1987] 2 WLR 425
Wilson v McLeay (1961) 106 CLR 523

Case(s) also cited:

Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Carr v Baker (1936) 36 SR (NSW) 301
Cassidy v Ministry of Health [1951] 2 KB 343
Chappel v Hart (1998) 195 CLR 232
Commissioner of Main Roads v Jones (2005) 215 ALR 418
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Green v Chenoweth [1998] 2 Qd R 572
Heather v Vita Pacific Ltd (1996) 6 Tas R 52
Hunter v Hanley [1955] SLT 213
Imperial Chemical Industries of Australia and New Zealand Ltd v Murphy (1973) 47 ALJR 122
Kember v Thackrah [2000] WASCA 198
Kondis v State Transport Authority (1984) 154 CLR 672
Lawson v Flavel [2001] WASCA 272
Lawson v Minister for Health (2005) 40 SR (WA) 64
Maloney v Commissioner of Railways (NSW) (1978) 18 ALR 147
McGilvray v Amaca Pty Ltd [2001] WASC 345
Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] Ch 384
Millicent District Council v Altschwager (1983) 50 ALR 173
Mundy by his Tutor Mundy v Government Insurance Office of New South Wales, unreported; SCt of WA; 5 June 1995
Quigley v Commonwealth of Australia (1981) 35 ALR 537
Richards v Mills [2003] WASCA 97
Romeo v Conservation Commission of the Northern Territory [1998] 179 CLR 431
Rosenberg v Percival (2001) 205 CLR 434
Samios v Repatriation Commission [1960] WAR 219
Schneider v Hoeschst Schering Agrevo Pty Ltd [2001] FCA 102
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Settsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Sidaway v Govenors of Bethlem Royal Hospital [1985] AC 871
St George Club v Hines (1961) 35 ALJR 106
Teubner v Humble (1963) 108 CLR 491
Walters v Shire of Wakool, unreported; SCt of VIC; Library No BC200307814; 12 & 13 November & 17 December 2003
Wells v Wells [1998] 3 All ER 481
Whittingstowe (1945) 71 CLR 637TC by his Tutor Sabitino v The State of NSW [2001] NSWCA 380
Wickham v Walker [2002] WADC 167
Willcox v Sing [1985] 2 Qd R 66
Wynn v NSW Insurance & Ministerial Corporation (1995) 184 CLR 485
Wyong Shire Council v Shirt (1980) 146 CLR 40

Introduction...................................................................................................................................................................... 6
The defendants.................................................................................................................................................................. 7
The pleadings in relation to the first defendant................................................................................................ 8
The pleadings in relation to the second defendant......................................................................................... 11
The pleadings in relation to the third and fourth defendants................................................................... 13
The plaintiff's evidence – events up to and including 24 July 1999............................................................ 16
Evidence of the first defendant............................................................................................................................... 44
Evidence of the third defendant.............................................................................................................................. 50
Evidence of the second defendant.......................................................................................................................... 55
Other non‑expert evidence adduced by the defendants................................................................................ 58
Findings of fact – the non‑expert issues................................................................................................................ 59
The plaintiff's failure to give evidence – the rule in Jones v Dunkel......................................................... 59
Observations on the credibility of the plaintiff's non‑expert witnesses................................................ 62
Observations on the credibility of the defendants' non‑expert witnesses............................................ 63
The nature, symptoms and timing of the plaintiff's headaches................................................................... 65
The plaintiff's understanding of his CT scans.................................................................................................... 67
Dr Austin........................................................................................................................................................................... 68
The knowledge of Drs Joseph, Kearon and Bested as to the plaintiff's history of headaches...... 68
The expert evidence on liability and causation................................................................................................ 73
The nature and causes of benign headaches....................................................................................................... 78
The anatomy of an AVM and the basal ganglia................................................................................................ 79
Symptomology associated with AVMs.................................................................................................................. 80
The standard of care provided by the defendants........................................................................................... 84
Findings in relation to the defendants' duty of care................................................................................... 107
Causation – Relevant principles............................................................................................................................ 122
Delay in diagnosis........................................................................................................................................................ 124
The plaintiff's submissions........................................................................................................................................ 125
The size of the plaintiff's AVM............................................................................................................................... 126
Treatment options in the plaintiff's case – an introduction...................................................................... 127
Treatment options – analysis of the evidence................................................................................................. 131
The plaintiff's election.............................................................................................................................................. 143
The time frame required to work up the plaintiff's case from diagnosis to treatment................... 144
Conclusion in relation to causation................................................................................................................... 148
Contributory negligence......................................................................................................................................... 149
Provisional assessment of damages..................................................................................................................... 150
Loss of earnings and superannuation................................................................................................................. 153
Costs of past and future care – preliminary findings.................................................................................. 157
Care and domestic assistance................................................................................................................................. 158
Past treatment and sundry expenses................................................................................................................... 161
Future medical and treatment costs.................................................................................................................. 162
Future equipment expenses....................................................................................................................................... 163
Past and future case management and rehabilitation................................................................................ 163
Future motor vehicle expenses.............................................................................................................................. 164
Future holiday expenses........................................................................................................................................... 165
Modification of accommodation........................................................................................................................... 165
Parental visits.............................................................................................................................................................. 171
Loss of expectation of life....................................................................................................................................... 171
General damages for pain and suffering and loss of amenities of life.................................................. 171
Fund management expenses...................................................................................................................................... 172
Conclusion..................................................................................................................................................................... 172

MCCANN DCJ:

Introduction

In this action the plaintiff claims damages for negligence from each defendant in respect of medical treatment that was provided to him at various times in 1999. The following introductory facts are not in dispute save where I have indicated otherwise.
On the morning of 24 July 1999 the plaintiff, Mr Gary James Le Brun, collapsed at his home in Kalgoorlie, complaining of a throbbing right‑sided headache. He was conveyed by ambulance to the Emergency Department of the Kalgoorlie Regional Hospital where he was placed under observation for approximately two hours under a provisional diagnosis of hemiplegic migraine. When his condition failed to improve he underwent a non‑contrast cranial CT scan which disclosed that he had suffered a right temporal lobe haemorrhage.
The plaintiff was transferred that afternoon by Royal Flying Doctor Service to Sir Charles Gairdner Hospital in Perth. Later that night the plaintiff underwent cerebral angiography which confirmed the findings of the CT scan in Kalgoorlie and disclosed that the haemorrhage was caused by the rupture of an arteriovenous malformation (an "AVM") that was located in the right temporal lobe of the plaintiff's brain in an area known as the basal ganglia. A left frontal external ventricular drain was inserted in the plaintiff's brain to relieve the pressure of the haematoma that was caused by the haemorrhage. However, the plaintiff's condition deteriorated and on 29 July 1999 he underwent a right parieto‑temporal craniotomy and evacuation of the haematoma performed by Dr (now Professor) Neville Knuckey. In the process the plaintiff's AVM was completely removed.
The plaintiff's recovery was long and arduous. He suffered from a number of complications including infections, respiratory failure, collapsed lungs and post‑traumatic amnesia. He was transferred from Sir Charles Gairdner Hospital to the Royal Perth Rehabilitation Hospital on 30 August 1999 where he remained until 20 January 2000 when he was discharged to the care of his parents in Perth. The plaintiff was severely disabled and for some time he required care 24 hours per day. With time, and the devoted care of his parents and his siblings (notably his brother Nathan), the plaintiff made a steady and partial recovery. Nevertheless, the plaintiff has been left with a number of residual disabilities (see Dr Fong's report, exhibit 19A) including:
‑Left hemiparesis involving the left arm and leg: The plaintiff's left arm is virtually functionless and he has limited use of his left leg. With the aid of a calliper on his lower left leg the plaintiff is able to ride a tricycle or slowly walk short distances. As a result, the plaintiff is heavily wheelchair dependent.
‑Left homonymous hemianopia: The plaintiff has lost the left side of his field of vision because his brain cannot process data that is "seen" by the left field of vision of each of his eyes.
‑Left sided hemi‑body sensory loss
‑Vertical gaze palsy: The plaintiff is unable to maintain his eyes in parallel with each other, which results in some double vision and he has lost his ability to elevate his eyes to look upwards.
‑Cognitive dysfunction and psychological problems, including depression and mood swings. The extent of these problems is a live issue in this matter, but the plaintiff is able to engage in basic every day self‑care (such as bathing and dressing) and is able to converse and inter‑relate socially.

The defendants

The first, second and third defendants are all medical practitioners. The plaintiff alleges that he consulted each of them for advice and treatment in relation to headaches prior to 24 July 1999. The first defendant ("Dr Joseph") was at all material times the sole principal of a general practice known as the Boulder Medical Clinic and last saw the plaintiff on 13 July 1999. The second defendant ("Dr Bested") worked as a medical practitioner on a locum basis at the Boulder Medical Clinic and saw the plaintiff on 19 July 1999. The third defendant ("Dr Kearon") worked as a Resident Medical Officer in the Emergency Department of the Kalgoorlie Regional Hospital ("KRH") and saw the plaintiff on 11 July 1999. The fourth defendant stands in the place of the Board of Management of the KRH pursuant to s 7 of the Hospitals and Health Services Act 1927 and, in effect, was responsible for the management of the hospital.
In this action the plaintiff alleges that each doctor should have referred him for a CT scan of the brain and/or a review by a neurologist or a neurosurgeon and that if those events had occurred, his AVM would have been diagnosed and successfully treated before the haemorrhage on 24 July 1999.

The pleadings in relation to the first defendant

The plaintiff pleads that on 15 March 1999 he attended the first defendant. There is no allegation in the statement of claim as to the reason for the plaintiff's attendance on the first defendant or as to what transpired in the course of that consultation, save for an allegation that the first defendant referred the plaintiff for physiotherapy. The omission is corrected somewhat in the plaintiff's reply to the first defendant's defence, wherein, in response to an allegation by the first defendant that the plaintiff consulted him in respect to a right lower neck strain, it is pleaded that the plaintiff complained to the first defendant of severe persistent temporal headaches and that the first defendant referred the plaintiff for physiotherapy after examining his neck.
It is next pleaded that on 16 March 1999 the plaintiff attended a physiotherapist (this transpired to be Ms Kirrily Pearce, nee Thomas), and complained to her of intense temporal headaches and that on 20 March 1999 Ms Pearce wrote a report to Dr Joseph and advised him accordingly.
It is next alleged that the plaintiff attended the first defendant on 30 April, 1999 that the plaintiff complained of persistent headaches and was referred to an otolaryngologist, namely Dr John Harlock, for investigation of possible sinusitis. It is alleged that on 13 May 1999 Dr Harlock wrote a report to the first defendant and advised him that he had recently attended the plaintiff and that the plaintiff's headaches and temporal discomfort were unlikely to be associated with sinusitis.
It is next alleged that the plaintiff attended the first defendant on 13 July 1999. Once again, there is no allegation in the statement of claim as to the reason for the plaintiff attending the first defendant on this occasion or as to what transpired in the course of the consultation, save for the fact that the plaintiff was referred for a CT scan of his cervical spine. However, in his reply to the first defendant's defence, the plaintiff denies an allegation in the defence to the effect that he complained of neck pain following manipulation by chiropractor and says that (inter alia) he complained to the first defendant of severe persistent temporal headaches.
It is pleaded that on 15 July 1999 the plaintiff underwent a CT scan of his cervical spine in accordance with the referral by the first defendant and that the radiologist reported the scan as being a "negative study".
It is next alleged that the first defendant owed the plaintiff a duty to exercise all reasonable care and skill in the provision of treatment and advice to the plaintiff and that the first defendant breached that duty of care as follows:
(a)After receipt of the physiotherapist's letter on or about 20 March 1999 he failed to accurately record the plaintiff's complaint of intense temporal headache in the plaintiff's file.
(b)The first defendant failed to take any action subsequent to the receipt of Dr Harlock's letter on or about 13 May 1999 and in particular failed to:
(i)Advise the plaintiff that his headaches and temporal discomfort were unlikely to be associated with sinusitis;
(ii)Advise the plaintiff to undergo a cranial CT scan and a review by a neurosurgeon, neurologist, or both;
(iii)Telephone the plaintiff and ask him to attend the Boulder Medical Clinic for review;
(iv)Make an accurate record in the plaintiff's file of the advice provided by Dr Harlock that:
(1)The plaintiff's headaches and temporal discomfort were unlikely to be associated with sinusitis;
(2)The CT scan the plaintiff underwent in January 1999 was of the sinuses only. (This is the only reference in the pleadings to a CT scan in January 1999).
(c)On 13 July 1999 the first defendant failed to take an adequate history from the plaintiff, which history would have elicited at least the following facts:
(v)A one year history of severe temporal headache;
(vi)The plaintiff had recently attended the Emergency Department of KRH for about four hours with a history of a headache that had lasted for one week, and which started in the right temporal area and radiated to the neck and was of such sufficient severity that the plaintiff was unable to work.
(d)On 13 July 1999 the first defendant failed to refer the plaintiff for a cranial CT scan, review by a neurosurgeon, neurologist or both.
(e)Upon receipt of the report of the CT scan carried out on 15 July 1999 the first defendant failed to organise a cranial CT scan and/or review by a neurosurgeon, neurologist or both.

The first defendant admits that the plaintiff consulted him on 15 March 1999 and pleads that the plaintiff sought advice and treatment relating to a right lower neck strain caused by a football injury.
The first defendant admits that he received the physiotherapist's letter of 20 March 1999 and in particular pleads that the letter stated that the plaintiff had been treated on four occasions which had resolved the plaintiff's symptoms and that he was pain free with no headache.
The first defendant admits that the plaintiff consulted him on 30 April 1999 but denies that the plaintiff complained of persistent headaches. The first defendant pleads that at this consultation the plaintiff complained of "headaches and facial aches" and reported that the symptoms were worse on bending forward. The first defendant pleads that based on these symptoms he diagnosed that the plaintiff was suffering an acute attack of sinusitis and gave the plaintiff a referral to see Dr Harlock for an opinion as to whether surgery was required to unblock the plaintiff's sinuses. The first defendant pleads that at the conclusion of the consultation he advised the plaintiff to return for review if his symptoms persisted.
The first defendant admits receiving Dr Harlock's letter dated 13 May 1999 and pleads that Dr Harlock raised the possibility in this letter that the plaintiff had a migraine type syndrome.
The first defendant admits that the plaintiff consulted him on 13 July 1999 and pleads that the plaintiff sought advice and treatment in relation to neck pain following manipulation by a chiropractor. The first defendant pleads that he examined the plaintiff's neck and tested his arm reflexes and noted that they were normal on the right and left sides. He pleads that he referred the plaintiff for a CT scan of the cervical spine in order to investigate whether his neck pain was due to a disc protrusion. He pleads that he provided the plaintiff with a prescription for Panadeine Forte and advised the plaintiff to return for review on 16 July 1999, but that the plaintiff cancelled his appointment. The first defendant admits that the plaintiff underwent a CT scan of the cervical spine on 15 July 1999 with a negative result.
The first defendant admits that he owed the plaintiff a duty of care, but denies that he breached that duty. He further pleads that the plaintiff caused or contributed to any injury that he suffered on the grounds that he:
‑failed to attend appointments with the first defendant on 19 March 1999 and 16 July 1999,
‑failed to inform him of the precise nature of his symptoms and in particular that he had been experiencing severe temporal headaches for a period of one year,
‑failed to inform him of his attendance at KRH on 11 July 1999 or of the reasons for that attendance,
‑failed to heed his advice on 30 April 1999 to return for review if his sinusitis symptoms persisted.

The pleadings in relation to the second defendant

The plaintiff pleads that he attended Dr Bested (at the Boulder Medical Clinic) on 19 July 1999 in the course of which Dr Bested noted:
(a)The plaintiff had a history of headaches for 18 months associated with tinnitus and blurred vision.
(b)These headaches began in the plaintiff's right temporal area with pulse‑like throbbing and radiated to the left temporal and occipital area.
(c)The plaintiff had undergone CT scans of his sinuses and head which were normal.
The plaintiff pleads that Dr Bested diagnosed the plaintiff as suffering from a migraine headache with cervical and vascular components.
Dr Bested admits these allegations and further pleads that she noted the plaintiff reported that he had temporary relief of symptoms with physiotherapy (traction) and worsening of symptoms with chiropractic treatment. Dr Bested further pleads that according to the history given by the plaintiff the episodes of headache associated with blurred vision and tinnitus occurred every few months. She pleads that she recommended the plaintiff continue with physiotherapy and that she provided the plaintiff with a prescription for Diazepam, Cafergot and a repeat prescription for Panadeine Forte. In addition she advised the plaintiff to attend for review by Dr Joseph if the plaintiff's symptoms did not improve.
The plaintiff pleads that Dr Bested owed him a duty to exercise all reasonable skill and care in the provision of treatment and advice and that Dr Bested breached her duty of care to him as follows:
(a)Dr Bested failed to review or to adequately review the plaintiff's patient file kept by the Boulder Medical Clinic, which review would have indicated that:
(i)The plaintiff had never undergone a cranial CT scan;
(ii)A physiotherapist had reported on 20 March 1999 that the plaintiff was complaining of intense temporal headaches at that time;
(iii)Dr Harlock's letter of 13 May 1999 which reported that the plaintiff's headaches and temporal discomfort were unlikely to be associated with sinusitis;
(iv)Intra‑cranial pathology could not be excluded as a potential cause of the symptoms with which the plaintiff presented on 19 July 1999.
(b)Dr Bested failed to take an adequate history from the plaintiff which would have elicited at least the following facts:
(i)The plaintiff had a one year history of severe temporal headache;
(ii)The plaintiff had recently attended the Emergency Department of the KRH with the symptoms referred to in par 12(vi) hereof.
(c)Dr Bested failed to refer the plaintiff for a cranial CT scan, or review by a neurosurgeon, neurologist or both.
Dr Bested admits that she owed a duty of care to the plaintiff but denies that she breached it. Dr Bested further pleads, in the alternative, that if she did breach her duty of care to the plaintiff then the plaintiff's injury was caused or contributed to by his failure to inform her that he had attended the KRH Emergency Department on 11 July 1999 and the reasons for that attendance.

The pleadings in relation to the third and fourth defendants

The plaintiff pleads that at about 1.30 pm on 11 July 1999 he attended the KRH Emergency Department and was attended by a triage nurse who was an employee or agent of the hospital. The third and fourth defendants admit these allegations (save that they contend that the plaintiff arrived at KRH at 1.22 pm and was seen by the triage nurse at 1.30 pm, and was transferred to the short stay room at 2.30 pm).
The plaintiff pleads that he gave the triage nurse a history of suffering from temporal headaches on and off for 12 months, that he had been suffering from a severe temporal headache for one week and that he had vomited on the morning of 11 July 1999. It is next pleaded that the plaintiff was seen by Dr Kearon at 3.35 pm and that he gave her a history of suffering from severe temporal headaches for one year, that his current headache had started in the right temporal area and radiated to the neck, that he had been unable to work because of the headache and that he had vomited once that morning. It is further pleaded that Dr Kearon examined the plaintiff and noted that he had decreased range of movement in his neck, was tender in the temporal and paraspinal region and had no meningism.
The third and fourth defendants admit these allegations and further plead a number of matters about the plaintiff's history and the findings on examination which were the subject of evidence and need not be set out here.
The plaintiff pleads that at 5.15 pm on 11 July he was sent home from the Emergency Department. The third and fourth defendants admit that the plaintiff left the Emergency Department at 5.15 pm but do not admit that the plaintiff was "sent home". In their further and better particulars the third and fourth defendants state that the plaintiff left after being advised that he could leave if he wished to do so.
The plaintiff pleads that the third defendant owed him a duty to exercise all reasonable skill and care in the provision of treatment and advice and that such duty was breached in that Dr Kearon:
(a)Failed to act or to act adequately upon the history and examination findings.
(b)Failed to organise for the plaintiff to have a cerebral CT scan or a cerebral MRI scan or assessment by a neurosurgeon, neurologist or both.
(c)Failed to report the fact of the plaintiff's presentation to the Emergency Department on 11 July 1999 to the Boulder Medical Clinic shortly after that presentation by letter or telephone call.
(d)Formed the erroneous conclusion that the plaintiff had undergone a cerebral CT scan at some time prior to 11 July 1999 when (it is alleged) no such history was given to her by the plaintiff, and a review of the KRH file relating to the plaintiff would have indicated the plaintiff underwent a CT scan only of his paranasal sinuses on 28 January 1999.
The plaintiff pleads that the fourth defendant is liable to him on two separate grounds. First, vicariously for the negligence of the hospital's employee, Dr Kearon. Second, for breach of the duty of care which the fourth defendant owed him in its own right to exercise reasonable skill and care in the provision of advice and treatment to him. In respect of the breach of this duty of care it is alleged that the fourth defendant:
(a) Failed to have any, or any adequate, system in place on 11 July 1999 so as to ensure that the plaintiff's general practitioner (ie Dr Joseph) would be advised of the plaintiff's presentation to KRH on 11 July 1999.
(b)Failed to have any, or any adequate, system in place at KRH in respect of the investigation of patients presenting with severe headaches.
(c)Failed to have any, or any adequate, system in place at KRH providing for the provision of discharge information to patients presenting with severe headache in respect of further medical or specialist review or recommendations as to radiological examination.
(d)Failed to staff the Emergency Department of KRH on 11 July 1999 with nursing and medical staff with sufficient qualifications and experience to assess, treat and advise patients presenting at the hospital with severe headache.
(e)Failed to have any, or any adequate, system in place on 11 July 1999 in respect of patients presenting with severe temporal headaches and with the plaintiff's history and symptoms which would have required a cranial CT scan, review by a neurosurgeon or neurologist, or both, or at least admission to KRH for observation.
(f)Failed to have any, or any adequate, system in place on 11 July 1999 in respect of review of patient presentations to the Emergency Department of KRH by a suitably qualified medical practitioner/specialist, such that erroneous clinical management decisions, such as those (allegedly) made by Dr Kearon in the plaintiff's case were detected within a short time after a patient's presentation to the hospital, and which would have resulted in the recall of the plaintiff or at least advice as to the severity of the plaintiff's condition being communicated to the Boulder Medical Clinic prior to 24 July 1999.
The third and fourth defendants admit the existence of their duties of care (and in the fourth defendant's case, its vicarious liability for any negligence of Dr Kearon) but deny the allegations of negligence on their part. Dr Kearon and the fourth defendant further plead that the rupture of the plaintiff's AVM and its sequelae would have occurred in the absence of negligence by them and further, the failure to report the plaintiff's attendance at KRH to the Boulder Medical Clinic did not cause or contribute to the rupture of the AVM in that Dr Joseph and Dr Bested became aware of the plaintiff's symptoms and condition when he attended each of them and reported his symptoms and condition on 13 July 1999 and 19 July 1999 respectively.
Finally, Dr Kearon and the fourth defendant plead that the rupture of the plaintiff's AVM, and its sequelae, would not have been avoided if before 24 July 1999 the plaintiff had been referred by Dr Kearon for a CT scan or MRI or for assessment by a neurologist or a neurosurgeon or the plaintiff's attendance at the KRH had been reported to the Boulder Medical Clinic. In effect, the purpose of this plea is to explicitly deny an issue which is implicitly joined in the pleadings, namely whether the plaintiff's AVM was treatable and whether the rupture of the same could have been avoided by medical treatment if the existence of the AVM had been diagnosed prior to 24 July 1999.

The plaintiff's evidence – events up to and including 24 July 1999

A large body of documentary evidence pertaining to the plaintiff's health prior to 24 July 1999, and his treatment on and after 24 July was tendered by consent. This included medical reports (including radiological reports), appointment books, clinical notes, referrals by Dr Joseph to other health professionals, records of KRH and Sir Charles Gairdner Hospital, the plaintiff's work records, Health Insurance Commission records and other documents. The plaintiff's medical records for the period 10 April 1996 to 24 July 1999 were tendered in evidence in a chronological booklet as exhibit 1. This booklet includes typed transcripts of some of the hand‑written records. For ease of reference I shall refer to each document in that booklet by reference to the exhibit number and the page of the booklet. (For example, Dr Joseph's clinical notes for 30 April 1999 are exhibit 1.48 and the transcript of those notes is exhibit 1.47).
The plaintiff's acquaintances and members of his family were permitted to give evidence of statements which the plaintiff made to them, or their observations of the plaintiff, concerning his headaches as evidence of the fact that he was then suffering from a headache. (This exception to the hearsay rule is discussed in Cross on Evidence 7^th Australian ed. at par [37130]).
When, in due course, I summarise the plaintiff's evidence in relation to his medical care prior to 24 July 1999 I shall endeavour as much as possible to do so in chronological order which will necessitate interrupting some evidence and returning to it later.
The plaintiff's first witness was his mother, Mrs Eleni Le Brun. She testified that the plaintiff was born on 3 December 1971 and has two siblings, a brother Nathan who was born on 17 July 1974 and a sister Natalie who was born on 7 June 1975. The plaintiff's father, Graeme Le Brun, has spent his entire working life in the mining industry. As a result the Le Brun family moved about the goldfields of Western Australia during the plaintiff's childhood and adolescent years. Mr and Mrs Le Brun settled in Perth in 1994, although Mr Le Brun continued working in various mines. The plaintiff was always healthy as a child and a young adult, but did not play much sport. Mrs Le Brun testified (T116) that "the loves of his life were his cars and his bike, push‑bike", and that he had a motor bike. He prided himself on his physical fitness and did a great deal of cycling on his push‑bike. Mrs Le Brun testified that the plaintiff played football as a small child, but did not play the game as an adult.
The plaintiff went to school until 1987 and thereafter began working in the mining industry. Initially he worked as a surface labourer, but he gradually worked his way up the hierarchy gaining skills and experience in a variety of forms of underground work. In 1995 the plaintiff began a four year automotive mechanic's apprenticeship at the Shell Service Station in Boulder. This resulted in a significant reduction in his income, but he regarded this as a necessary sacrifice in order to fulfil his ambition of becoming a mechanic. The plaintiff was 23 years of age at that time. He completed the apprenticeship in or about May 1999.
Mrs Le Brun testified that the plaintiff had two significant relationships and is the father of two young children, a daughter and a son, who were born in 1993 and 1996 respectively. Both of those children are cared for by their mothers.
Mrs Le Brun testified that the plaintiff was a member of a close‑knit family and that she remained in regular contact with him, either by telephone or in person. She said that in 1998 and 1999 she telephoned the plaintiff twice or more a week, and saw the plaintiff in person on long weekends or other special occasions when the family gathered together.
Mrs Le Brun testified that she first became aware that the plaintiff was suffering from severe headaches in the course of a telephone conversation one weekend in early – to mid – 1998. She said (T118) that she telephoned the plaintiff and asked him what he was doing, whereupon the plaintiff replied that he was "lying down because he had this mind‑blowing headache". Mrs Le Brun testified that subsequently the plaintiff regularly complained to her about suffering from a headache, and pointed out the location of the headaches to her on occasions when they were together at the family home in Perth. She said (T118) that "he showed me that they were across the back here [pointing to the back of her head] around the top of his ear and to the right temple". Mrs Le Brun testified that she witnessed the plaintiff having a headache on a couple of occasions when he went into his bedroom. She testified (T130) that the plaintiff was in "severe pain" and was "screaming, swearing, holding his head … sort of riding it out sort of thing".
Mrs Le Brun testified that on 15 March 1999 the plaintiff said to her in a telephone conversation that he was suffering from a "severe temporal headache" (in cross‑examination she corrected "temporal" to "temple"). She said (T130) that he described the headache "as mind blowing that was killing him".
Mrs Le Brun recalled a specific occasion at the end of April 1999 when the plaintiff complained to her over the telephone of a severe headache. She suggested to the plaintiff that he request his doctor to refer him to a specialist in Perth to find out what was causing the headaches. She testified that she accompanied the plaintiff to an appointment with a specialist, Dr John Harlock, in Mt Lawley on 13 May 1999. The plaintiff took some CT scans with him into Dr Harlock's consulting room. She remained in the waiting room while the consultation took place.
Mrs Le Brun testified that her next relevant conversation with the plaintiff took place on the evening of either 19 or 20 July. Mrs Le Brun remembers the date because her birthday falls on 20 July. Mrs Le Brun said (T133) that the plaintiff told her that he "had gone back to the Boulder Medical Clinic because he was suffering – by this time this headache was killing him, like so badly". She said (T134) that the plaintiff said that he "felt like committing suicide and … said he felt like hanging himself from the rafter that was at the front of the doctor's surgery because he couldn't cope with the pain any longer". She said that the plaintiff told her that thinking about his two children had induced him to abandon such thoughts.
Mrs Le Brun identified two photographs of the plaintiff (exhibits 8A and B). The first was taken at "about Christmas 1997" and the second just prior to the plaintiff's discharge from Shenton Park Rehabilitation Hospital in January 2000. The 1997 photograph shows the plaintiff to have been a handsome, well‑groomed young man with a broad smile. The later photograph shows significant changes in the plaintiff's facial features. In particular his facial musculature appears to be much altered and the full, open smile of 1997 was replaced by an angular and partial smile.
Under cross‑examination by Mr Murphy SC for the first and second defendants Mrs Le Brun freely acknowledged her close involvement with the plaintiff's care since 1999, her close involvement in the preparation of his case in this action and her personal interest in the litigation. Mrs Le Brun denied any possibility of her being confused as to the details of the specific conversations with the plaintiff which she referred to in her evidence and denied that her evidence was based upon her reading of the medical evidence since 24 July 1999.

Under cross‑examination by Mr Hancy for the third and fourth defendants Mrs Le Brun stated that she could not recall any relevant conversation with the plaintiff in June 1999. In response to questions as to whether the plaintiff had informed her of any consultations he had with a chiropractor in July 1999, she replied (T174) "I suggested he do that to try and get some help for his headaches". In response to a later question she said that this occurred whilst she was temporarily living in Cue in late April or early May. When questioned about the telephone call that she said took place on 19 or 20 July, Mrs Le Brun said that she believed from what she had been told by the plaintiff that he had been to see a doctor at the Boulder Medical Clinic and a physiotherapist that day. She said (T176) that she recalled his words "word for word because it wasn't long after that he had a brain haemorrhage and these things have been embedded in my mind over the past six and a half years". Mrs Le Brun stated that the plaintiff did not say to her that he had suffered from blurred vision or ringing in his ears. She said that all she could remember was the plaintiff telling her how bad his headache was, and that he wanted to kill himself, a statement which she said she could never forget because of the emotional effect which it had on her.
Mrs Le Brun agreed that the plaintiff had described his headaches to her as being "migraines". She said that in the telephone call on 15 March 1999 she suggested to the plaintiff that he get a second medical opinion and suggested that he see her former general practitioner in Kalgoorlie, namely Dr Austin. She said that the plaintiff did that and took his CT scans with him.
The plaintiff called evidence from a number of friends and acquaintances who knew him in Kalgoorlie.
Mr Grant Durbridge shared accommodation with the plaintiff in two different houses in 1998 and 1999. He formed a good impression of the plaintiff (who is older than him) and explained his reasons: (T248‑249).
"Well, the thing was that's why I sort of did get a house with him in the end because he, you know, I was working hard but there was – I was living in a house, a shared house, with a lot of other people. Gary was basically a breath of fresh air to me, you know, he had his head screwed on and he just seemed like he had a good future and at the time there wasn't a lot of people that I associated with up in Kalgoorlie that had his head on his shoulders sort of thing."
Mr Durbridge witnessed the plaintiff suffering from headaches. He was unable to recall exactly when he first did so but said that it was during the period that they shared their second house together. He testified that he specifically recalled "a couple of times … only a few weeks before … [the plaintiff] had serious trouble" (this would suggest in or about late June or early July 1999). He testified that the plaintiff ‑ (T250)
"Used to come out of his room, like crying. He'd been in his room for the dark because he couldn't be out in the house because we had skylights and things like that. Yeh, he'd come out in tears basically with – you know, saying 'can you massage my head?' or 'I've got these headaches. It's killing' ‑ he didn't even say that. You could see that he was in a lot of pain …"
Mr Durbridge testified that he saw the plaintiff in this state on no more than five occasions, "three possibly". He was not cross‑examined.
Ms Maree Bullock testified that she met the plaintiff in Kalgoorlie in about 1998. For a period of time the plaintiff lived in a house immediately behind her own, and then he moved to another house a couple of streets away. She testified that she once took the plaintiff to the KRH Emergency Department. (I find that this visit occurred on 11 July 1999, since there is no record of the plaintiff attending KRH on any other occasion, apart from 24 July). She testified that the plaintiff had complained to her of suffering from headaches over a period of approximately six months before the hospital attendance. She said that she saw him rubbing his forehead as a person did when they had a headache, on many occasions. Ms Bullock testified (T258) that the day she took the plaintiff to hospital he telephoned her and told her "that his headaches were really bad, that he could hardly even lift his head" and requested her to take him to hospital. She said that she picked him up and drove him to KRH in her car. She said that he was holding his head and saying "my head hurts". Upon arrival at the hospital either the plaintiff or Ms Bullock (she was unable to recall which) spoke to a nurse in the Emergency Department and briefly explained the reason for the plaintiff's visit. They then sat in some chairs in a waiting area for about two hours (she guessed) until the plaintiff was seen by a doctor. She said that during this period the plaintiff "was in a bad way" and that he was unable to keep his head upright and lay down with his head on her lap. The plaintiff was taken away and she left the hospital. She returned to pick him up after she received a telephone call from the hospital "much later, a few hours later". She testified (T262) that the plaintiff's physical condition was "the same" and that "his headache was still there and he was still in a lot of pain". He "was holding his head, saying his head was hurting still". She took the plaintiff to a pharmacy where a prescription was filled out for "Mersyndol or Panadeine Forte or something like that". She then took the plaintiff home.
Under cross‑examination by Mr Hancy, Ms Bullock disagreed with the suggestion that the plaintiff's headache may not have been as bad when she picked him up from the hospital as when she left him there. Ms Bullock testified that from what she could recall, the plaintiff was in much the same sort of condition. She agreed that she was led to this conclusion because the plaintiff told her that his headache was still there and he was holding his head.
Mr John Gregory testified that he first met the plaintiff in 1998. He testified that he did not observe the plaintiff playing any kind of sport, and in particular he never knew him to be a footballer. Mr Gregory testified that he moved into a house in Kalgoorlie at Christmas 1998 which he shared with Ms Bullock. The plaintiff moved into a house directly behind them shortly afterwards. He said that the plaintiff was a regular visitor to his house after that, and that it –
"Wasn't long after he moved in there that he told me that he was suffering from headaches. Initially he just complained of headaches and then as I got to know him better he said that they were very severe and described them as migraine headaches." (T269)
Mr Gregory testified that when the plaintiff came to his house he would –
"Basically knock on the back door and say he'd come over because he was feeling so unwell and that most of the time it was because there was nobody actually home with him. He didn't want to be at home on his own." (T269)
There were occasions when the plaintiff came over to his house to use the shower because (the plaintiff said) "he was so unsteady and didn't feel that he should be at home by himself in the shower" (T270). He testified that the period during which the plaintiff was "actually visiting because of headaches was … [a couple of months leading up to the accident]" that is prior to the haemorrhage on 24 July 1999. He was not cross‑examined.
The plaintiff's brother, Nathan Le Brun testified that he lived with the plaintiff in Kalgoorlie until about November or December 1998 when he moved to Perth. He testified that the plaintiff was already suffering from headaches when he first went to live in Kalgoorlie (that is, in or about mid 1998) but that the headaches became "worse and more common". He testified that "on multiple occasions" either he, the plaintiff or both of them went to the chemist to obtain some form of pain relief for the plaintiff's headaches but generally those did not help. Mr Le Brun testified (T382) about the plaintiff's behaviour when he complained of having a headache:
"Well, he used to become a different man, you know, he was in that much pain he'd be cursing and swearing constantly and he used to try and just go to his bedroom and close the doors and make everything dark and try and sit in different positions and lay in different positions to try and ease the pain because generally the medication that we were getting for him just didn't help him, you know, and that's the only thing that he said and I don't even know if that relieved the pain but it seemed, you know, that was what he tried to [do] … to try and relieve the pain."
Nathan Le Brun testified that upon his return to Perth he remained in contact with the plaintiff by telephone on a weekly or fortnightly basis. He said this continued for a period of approximately four to five months and the plaintiff regularly complained about his headaches during those conversations. In early 1999 Nathan Le Brun obtained work in Cue and went to live in that town. He recalled an occasion in "about April" 1999 when the plaintiff came to stay with him in Cue whilst he was on his way "to Perth to see a specialist [about] … his problem". He said (T383) that the plaintiff "mentioned to me that he felt like committing suicide". Mr Le Brun testified (T384) that afterwards he remained in telephone contact with the plaintiff whose health was "still the same and worsening. It became more frequent and even more severe".
Nathan Le Brun testified that he slept at the plaintiff's house on the evening of 23/24 July 1999. He said that he and the plaintiff rose at 6‑6.30 am. The plaintiff rode his bicycle to a shop to obtain bacon and eggs for breakfast. Upon his return he began to cook the bacon but immediately began to "curse and swear" saying that he had another headache. The plaintiff was in a lot of pain and was unable to continue cooking. He tried to relieve the pain by sitting or adopting various positions on the lounge room couch. The plaintiff was holding the right side of his face which appeared to be swollen and disfigured. At one point the plaintiff attempted to stand up but immediately collapsed to his left-hand side and began vomiting. It became apparent that he had lost all function on the left side of his body, whereupon Nathan Le Brun called an ambulance. He then carried the plaintiff to the front door of the house and awaited the arrival of the ambulance. Upon the arrival of the ambulance he gave one of the officers some information as to the plaintiff's prior history of headaches and as to the events that had occurred that morning. The plaintiff was taken to the Emergency Department of KRH by ambulance. Nathan Le Brun followed shortly afterwards in another vehicle with his aunty. Upon arrival at the hospital Nathan Le Brun waited for approximately half an hour before he spoke to a doctor who had been caring for the plaintiff. He gave the doctor a summary of the plaintiff's history of headaches similar to that which he had given to the ambulance officers. He said to the doctor that the plaintiff had seen many doctors, including a specialist in Perth, and that he thought the plaintiff had had a CT scan of his head.
Nathan Le Brun was cross‑examined in relation to the history of the plaintiff's presenting complaint on 24 July 1999 as it appears in the hospital's clinical notes (extracts of which are set out at par 119 below). He said that he may have provided the information set out in those notes to hospital staff. He was firm about having discussed certain matters but could not preclude the possibility that the plaintiff in fact gave the relevant history to the Emergency Department staff.
Under cross‑examination by Mr Hancy, Nathan Le Brun said that he believed the plaintiff told the ambulance officers in his presence that his vision was blurred or words to that effect. When asked (T452) whether the plaintiff told the ambulance officers in his presence that his headaches had never been so bad he replied:
"I believe Gary was actually going, 'this is a bad one, this is a bad one' so he may have – yes. Not in exactly those words, but words of that effect. Yes."
Under cross‑examination by each counsel, Mr Le Brun denied telling the ambulance officers or staff of the KRH Emergency Department that the plaintiff suffered from migraines every couple of months. He said that he was certain that he would not have said that because he knew and believed that the plaintiff's headaches occurred more frequently than once every two months.
Rosemarie Jenkins testified that she had known the plaintiff for approximately 11 years and was a friend of his when he lived in Kalgoorlie. She left Kalgoorlie in January 1999 and moved to Mandurah. Prior to leaving Kalgoorlie she was present when the plaintiff suffered from headaches "on a couple of occasions", possibly on three occasions. She described (T461) the circumstances as follows:
"He would be at my house and we would be sitting around having a chat and just suddenly a headache, a severe headache, would come on and sometimes he would actually end up vomiting in my toilet."
She stated that the plaintiff would be in pain, white in colour and holding his head. Ms Jenkins stated that these episodes occurred from approximately September 1998 onwards. She said that on these occasions the plaintiff told her that he had a migraine. Under cross‑examination Ms Jenkins was insistent that the headaches that she witnessed occurred after September 1998. She fixed September as being the relevant starting point because her 21^st birthday occurred that month.
Evidence was given by the plaintiff's father, Graeme Murdoch Le Brun. His evidence was directed towards the plaintiff's working history and current working conditions in the mining industry and to aspects of the plaintiff's rehabilitation. His evidence did not touch directly on any factual issue concerning liability.
I now turn to the contents of the Boulder Medical Clinic notes. These disclose that the plaintiff consulted Dr Joseph on 10 April 1996, 1 July 1996 and 24 February 1998 in relation to matters not directly relevant to this action, save that on 10 April 1996 the plaintiff complained of some kind of "football injury" involving a ligamentous strain of the ankle. On 9 December 1998 the plaintiff consulted Dr Isaac Seidl, who was a locum practitioner at the Clinic at that time. Dr Seidl was not called to give evidence. The transcript of his notes (exhibit 1.02) is set out as follows:
"Getting 'crook' all the time.
Sore throat.
Migraine 3 nights ago → sinus problems?
All over aches yesterday.
Ears – fluid behind drum.
No otitis nedia.
Throat – exudates over tonsils and throat.
Cervical and axillary (sic) LN [lymph nodes].
[Diagram of abdomen] tender HSM.
A/Imp: Inf mononucleosis.
Rx – FBC [full blood count].
Monospot.
EBV serology.
Rest and fluids and Panadol.
Review 1/52 [one week]."
(Any words which are set out in square parentheses in transcripts of the notes are not part of the notes themselves, but represent an agreed interpretation which has been included in the transcript).
Dr Seidl arranged for the plaintiff to have some pathology tests and the results were tendered in evidence. According to Dr Seidl's notes he suggested that the plaintiff return to be reviewed in one week's time. However, the plaintiff returned the following day, 10 December. The transcript of Dr Seidl's notes (exhibit 1.07) are set out below:
"Headache since last night. Tender over maxillary sinuses.
Diagnoses ‑ ? sinusitis → headaches.
DDx [differential diagnosis] tension H/A [headache].
Rx [treatment] – x‑ray sinuses.
Codral Forte.
No relief consider GON injections [greater occipital nerve injection]."
I find that on 9 and 10 December 1998 the plaintiff complained that he had been suffering from headaches. Dr Seidl considered two differential diagnoses, namely sinus headaches or tension headaches. He referred the plaintiff for an x‑ray of his sinuses and this was performed at the Kalgoorlie/Boulder Radiology Clinic by Dr Pascoe on 10 December 1998. The referral which was completed by Dr Seidl refers to the plaintiff having complained of a severe headache and being tender over the maxillary sinuses. The clinical history set out in Dr Pascoe's report (exhibit 1.10) was "headaches". His findings and conclusions were that the plaintiff was suffering from "acute left maxillary sinusitis" and "chronic frontal sinusitis". There is no documentary evidence of the plaintiff seeing Dr Seidl again, but Dr Pascoe's report is annotated "TCI". Dr Joseph testified that he placed this annotation on the report when he first read it, in order to signify to his practice manager that the plaintiff should be requested "to come in" for a review of the x‑ray findings. The report also bears an annotation dated 13 January 1999 in handwriting which Dr Joseph identified as belonging to his practice manager which signified that the plaintiff was telephoned and a message was left for him to contact the clinic.
The Boulder Medical Clinic records disclose that the plaintiff attended Dr Joseph on 18 January 1999. Dr Joseph's notes for this consultation read as follows:
"CT scan requested for sinus headaches.
? ENT requested."
A referral for a CT scan dated 18 January 1999 (exhibit 1.14) is in evidence. This was not kept on the Boulder Medical Clinic file and was obtained from elsewhere. It is difficult to read but the section for clinical history refers to "recurrent acute sinusitis, left maxillary mainly + + ". Dr Pascoe's report (exhibit 1.15) disclosed that a CT scan was performed on 28 January 1999. Inter alia, the report stated that the plaintiff's paranasal sinuses were clear and overall appearances had improved since the plain film study "that was carried out on 10 December 1998". Dr Pascoe concluded was that the scan disclosed "mild chronic right maxillary sinusitis" and "mild chronic inflammatory changes [of the] left turbinates". There is also a reference to "a chronic retention cyst 8mm in diameter in the right maxillary antrum anteriorly". This report is also annotated "TCI" in Dr Joseph's handwriting, and with a note (in someone else's handwriting) of an appointment having been made for the plaintiff to see Dr Joseph at 5 pm on 8 February 1999. In my view Dr Joseph was entitled at this point to regard sinusitis as being a factor in the plaintiff's condition.
The Boulder Medical Clinic records appearing at exhibit 1.16 to 1.18 confirm that the plaintiff saw Dr Joseph on 8 February as scheduled. The transcript of Dr Joseph's notes reads as follows:
"Cyst right antram.
Symptoms improved.
Script aldecin twin pack."
The next consultation between the plaintiff and Dr Joseph took place on 15 March 1999. Dr Joseph's notes read as follows:
"Right lower neck strain – football injury.
Feldene 20.
Physio."
According to the Clinic records the plaintiff did not keep another appointment on 19 March 1999. The next document on the file is a report (exhibit 1.38) from a physiotherapist Ms Kirrily Thomas (now Pearce) dated 20 March 1999 relating to treatment she gave to the plaintiff between 16 and 20 March 1999 at Dr Joseph's request.
It is necessary at this point to place the Boulder Medical Clinic file to one side to set out the evidence of a number of health professionals who saw the plaintiff at or about this time, beginning with Ms Pearce.
Ms Pearce testified that she treated the plaintiff between 16 March and 20 March 1999 at the physiotherapy clinic of a Mr Barry Larkan. Ms Pearce testified that she completed her physiotherapy training in 1992 and commenced working in Mr Larkan's clinic in Kalgoorlie in January 1999. The plaintiff attended her on 16 March with a referral from Dr Joseph. It is difficult to read Dr Joseph's handwriting on the referral (exhibit 1.22), but the interpretation is open that the referral was for a "right lower neck strain".

Parental visits

It has long been recognised that damages can be awarded in respect of the attendances by a plaintiff's parents whilst the plaintiff was in hospital, recuperating and in need of solace and comfort (see Wilson v McLeay (1961) 106 CLR 523 and Chapman v Katheappa [2002] WADC 47 at [76]). An appeal was allowed in Katheappa (supra) but not in relation to this item: see Chapman v Katheappa [2003] WASCA 50. . In my view the evidence amply justifies an award in respect of this item commencing with the plaintiff's hospitalisation. In my view his serious condition, and constant complications, necessitated the attendance of at least one of his parents, or siblings, at all material times, even when he was in a coma. No specific evidence has been led as to the costs incurred and an allowance is claimed as general damages in respect of this item. In my view it is appropriate to do so from the period from 25 July 1999 to 20 January 2000 at $150 per day, ie $26,850, for travel, meals and incidental items. I would allow interest at the rate of 6 per cent per annum from 20 January 2000 on the total sum of $26, 850.

Loss of expectation of life

Conventionally, an award of damages is made in a case such as the present, where the plaintiff's expectation of life is reduced by his injury. I would allow the sum of $15,000.

General damages for pain and suffering and loss of amenities of life

In this case there is no restriction on the amount of damages that could be awarded to the plaintiff for non‑pecuniary loss if he had been successful. In relation to pain and suffering and the loss of amenities of life, I take into account the following matters:
(1)Before suffering this disability the plaintiff was an active, motivated young man. He had numerous acquaintances and two young children. His future both in terms of employment and quality of life was bright. As a result of his significant neurological and physical disabilities, his parameters of life are very much confined. He will always be highly dependant on others and susceptible to psychological problems creating frustration, anger and depression.
(2)For some years after the rupture of his AVM, the plaintiff endured a frustrating and, at times, humiliating recuperation.
(3)He will never enjoy the pleasures of a rewarding vocation or play sport and his social and family expectations are circumscribed.
(4)The plaintiff has recovered reasonably basic social, communication and lifestyle skills but he has lost much.
In my view an appropriate award for pain and suffering and loss of amenities of life would be $275,000.

Fund management expenses

Dr Merrick (exhibit 54F) and Dr Burke (exhibit 4A) agree that the plaintiff is unable to deal with his own financial management and will require a trustee to assist with financial management. I further find that it will be reasonable and proper for the trustee to periodically take advice in relation to the management of the plaintiff's fund and to incur reasonable and proper charges associated with the investment, its periodic review and the re‑investment of the fund as the trustee sees fit. Accordingly, the plaintiff's damages should include an allowance for the capitalised cost of the protective trustee managing his trust and obtaining independent financial planning advice from time to time for his life expectancy (see Willett v Futcher (2005) 221 ALR 16; Smith v Hanrahan [2006] WADC 20).

Conclusion

In conclusion, I find that the plaintiff has established that the first and fourth defendants breached their duty of care to him on 13 July and 11 July respectively, but has failed to prove that the second and third defendants were negligent. I further find that the negligence of the first and fourth defendants did not cause the plaintiff's AVM to rupture on 24 July 1999 because that event would have occurred even if those defendants had not been negligent. Accordingly, I find that the plaintiff has failed to prove his claim against the defendants which is therefore dismissed.